Activists Sue Police Dept. Over ‘Can’t Confirm or Deny’ Tactic

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The Glomar Explorer, shown off the coast of Catalina Island in 1975. Howard Hughes undertook a secret C.I.A. operation with the vessel, aiming to salvage a sunken Soviet submarine. The C.I.A. said it could “neither confirm nor deny” the existence of the effort.CreditCreditAssociated Press

In the early 1970s, the reclusive billionaire Howard Hughes undertook a covert operation with the Central Intelligence Agency: He built a salvage ship, the Hughes Glomar Explorer, for a secret mission to raise a Soviet submarine that had sunk a few years earlier in the Pacific Ocean.

As a cover for the project, Hughes announced that the Glomar Explorer was mining manganese on the ocean floor, and though the mission was only partly a success, a reporter found out about it in 1975 and asked the C.I.A. for information. The agency responded with a now-familiar phrase: It could “neither confirm nor deny” the existence of the effort.

Thus was born the Glomar response, an ambiguous nonanswer that defense and intelligence officials have used for years to hide their deepest secrets.

Now, however, in a move that has worried some civil liberties advocates, the New York Police Department has started to use the Glomar response, employing it in recent years to avoid replying to two requests for information about its secret programs to surveil Muslim neighborhoods and political protesters, new court papers say.

Within the last few weeks, the New York Civil Liberties Union has sued the department in both matters, asking a court to set guidelines on the tactic’s use and arguing that if left unchecked, the Glomar response could have a chilling effect on Freedom of Information Law, or FOIL, requests.

“In the hands of an agency like the N.Y.P.D. that has infamously shown little regard for FOIL, Glomar threatens to eviscerate FOIL’s purpose to bring sunshine and accountability to government operations,” the civil liberties union argued in one of its briefs. “And the stakes for this secrecy are particularly high here given the N.Y.P.D.’s history of unwarranted surveillance of community members for their political activities and religious beliefs.”

Police officials said this week that their use of Glomar was both legal and limited, adding that they have employed the tactic appropriately and that those uses were ultimately upheld by an appellate court.

“These are specific, narrow cases where we had to show that a disclosure of information would harm an investigation or a counterterrorism effort,” said Lawrence Byrne, the department’s deputy commissioner for legal matters. “The idea that the world is going to collapse and the N.Y.P.D. is going to use Glomar all the time is just not true.”

Civil liberties advocates acknowledged that the department had so far employed the doctrine sparingly, but said they were concerned that its continued use could deepen the N.Y.P.D.’s longstanding culture of secrecy. In a series of recent court cases, the department has, for instance, tried to stop attempts by the civil liberties union and others to force the publication of the personnel records of officers accused of misconduct as well as the dispositions of internal police trials.

Without invoking Glomar, the department has also challenged requests for information about its use of X-ray vans, license plate readers and Stingray cellphone surveillance equipment.

At a City Council hearing on Wednesday, police officials strenuously objected to a proposed bill that would require the department to disclose details of surveillance techniques, saying that doing so would “provide an invaluable road map” to terrorists.

“The consequences for New Yorkers of allowing the N.Y.P.D. to operate in even greater secrecy are extremely high,” said Christopher Dunn, the associate legal director of the civil liberties union.

For decades, the Freedom of Information Law has been interpreted as requiring government agencies either to produce requested records — except for those that can be legally withheld — or to certify that the records being asked for do not exist.

But in a handful of federal cases, courts have allowed the government to use the Glomar response to entirely avoid public scrutiny of its policies, usually those related to national security, like targeted drone strikes or the C.I.A.’s use of extraordinary rendition.

Since the Sept. 11 terrorist attacks, the police in New York have greatly expanded their intelligence and counterterror operations, giving the issue of official secrecy a prominence it may have not have had 20 years ago.

Officials in New York first used Glomar in 2012 after two Muslim men, Samir Hashmi and Talib Abdur-Rashid, filed a FOIL request asking for any records indicating that they had been spied on as part of the department’s purported surveillance program of Muslim neighborhoods. The program came to light in a series of articles by The Associated Press describing how the department’s Intelligence Division spied on Muslim New Yorkers. But Mr. Byrne, neither confirming nor denying the existence of the program, still referred to it this week as “alleged.”

In 2014, when the two Muslim men sued to get the records, a trial court upheld the department’s use of Glomar in Mr. Abdur-Rashid’s case, but a separate court rejected it in Mr. Hashmi’s case. An appeals court considered both decisions and ruled last year that the police could use the Glomar response in cases where it was warranted. But the appellate court did not provide much guidance about what those cases might be.

And so on June 1, the civil liberties union filed an amicus brief on behalf of Mr. Hashmi and Mr. Abdur-Rashid in their appeal to the highest court in New York State. The brief argued that the first appellate court’s decision had resulted in “excessive secrecy” and “inadequate court oversight” and could encourage the department to use Glomar again.

In fact, the civil liberties union said, the department already had: Last year, it received a request for information from activists who took part in a 2014 protest, Millions March NYC, and wanted to know if police officials had interfered with, or listened to, their cellphone calls. The officials refused to confirm or deny the existence of any records indicating if such interference or surveillance had occurred.

On May 23, the civil liberties union sued the department on behalf of the activists, asking for the records again and criticizing its use of the Glomar tactic.

Many details of the original Glomar project became public in 2010 when the C.I.A. released an article about the operation after a researcher at the National Security Archive, a nonprofit in Washington, asked for the story to be declassified. But some facts about the case remain secret today.

“Very few people dispute that there are circumstances in which government agencies can legitimately invoke the Glomar doctrine; the question is how do you draw a line around those circumstances?” said Jameel Jaffer, the founding director of the Knight First Amendment Institute at Columbia University, who has argued several cases related to Glomar.

“It’s one thing to say the C.I.A. can’t confirm or deny its project to locate a sunken Russian nuclear sub. But when the agencies start invoking Glomar to shield policies that are highly controversial, and in many people’s opinion unlawful, it begins to look a little different.”

Benjamin Mueller contributed reporting.

A version of this article appears in print on , on Page A22 of the New York edition with the headline: Activists Sue Police Department Over ‘Can’t Confirm or Deny’ Tactic. Order Reprints | Today’s Paper | Subscribe